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supports its determination with respect to the potential damage component of the penalty. (Dave A. will review the data again to confirm.) 17. Shalom Ranch stated that Battle Mountain should be required to pay f ~r the economic benefit it derived from its failure to take the appropriate precautionsuy measures to prevent and monitor discharges to surface and groundwater from the West Pit. Similazly, the Groups stated their belief that the Division used a flawed analysis to determine that Battle Mountain did not enjoy an economic benefit as a result of its non- compliance. Specifically, they claim that it was improper for the Division to assume that: (1) the 400 gallon treatment facility is treating all of the contaminated water t}tat is being dischazged into Waters of the State; (2) there is a lineaz relationship between capital costs and the size of the two comparative facilities (110 gpm and 400 gpm); and (3) the cost of money to BMRI was six percent. The Division respectfully disagrees with the above criticisms of its aplroach to the economic benefit analysis. The first point assumes that discharges from tb,e West Pit are continuing, and concludes the costs should be higher to reflect the additional water that is not going through the treatment facility. However, the premise on which this point is based is incorrect because the discharges from the West Pit have ceased. A; to the second point, the Division's analysis does include an assessment of the linear.-elationship approach. In that assessment it distinguishes between the costs for which scal..ng based upon size of the treatment facility would be appropriate, and cosu for elements for which scaling would not be appropriate. Finally, the Division believes that its approach with respect to the "cost of money" to Battle Mountain was appropriate and consistent with past economic benefit assessments under the Civil Penalty Policy. (Dave A. will provide more clarification.) 18. CCCD, PASS, and Shalom Ranch commented that the settlement is flawed because it fails to consider history of past violations under the jurisdiction of the "implementing agencies." The Division's Civil Penalty Policy only authorizes consideration of violations of the WQCA, the statute implemented by the Division, in assessing a penalty under the "History Component" of the Policy. Battle Mountain had no history of violating the WQCA prior to this enforcement action. 19. CCCD, PAES, and Shalom Ranch submitted comments regarding the proposed Supplemental Environmental Project ("SEP"). The Groups claimed that the project does not comply with the Division's Civi] Penalty Policy because the Division lacks infotrnation to show that the proposed SEP will have an "identifiable benefit ter water quality" The Groups further stated, along with Shalom Ranch, that there is no information to support a relationship {or nexus) between the beneftts of the pn~posed project and the water quality impacts associated with the violation. Finally, the Groups commented that s SEP may not be appropriate in the context of this settlement because this is not an "exceptional case" and the facility has not yet returned to compliance, az required under the Policy. OT 'd 6T:£T 00.6 End 855£998£0£:xEj